Patterico's Pontifications


The Inconsistent Verdicts in the Ghailani Case

Filed under: General — Aaron Worthing @ 10:45 am

[Guest post by Aaron Worthing; send your tips here.]

Continuing our commentary on the African Embassy bombing case, what struck me when I learned about the verdict was how inconsistent it all seems.  He was convicted of conspiring to blow up these buildings, an act that resulted in hundreds of deaths, but he was not convicted of murdering any of those people.  From the New York Law Journal:

Clearing the Tanzanian native of four conspiracies and the murder of 224 people in the near-simultaneous bombings of the embassies in Kenya and Tanzania on Aug. 7, 1998, the jury in Judge Lewis A. Kaplan’s courtroom shocked prosecutors and defense lawyers alike with its verdict.

But the prosecution nonetheless succeeded in tying Mr. Ghailani to the bombings. The lone guilty verdict was declared on Count 5, a conspiracy to destroy buildings and property of the United States by means of an explosive. The jury answered a follow-up question in the affirmative, finding that Mr. Ghailani’s conduct in Count 5 “directly or proximately caused death to a person other than a co-conspirator.”

Mr. Ghailani, 36, faces a mandatory minimum of 20 years in prison and a maximum of life when he is sentenced on Jan. 25.

You have to be a lawyer to appreciate just how hard it is to justify that verdict.  You see, it is black letter law on the federal level that once you are convicted of conspiracy you can be held liable for any act that is the reasonably foreseeable result of forming the conspiracy, and in furtherance of that conspiracy.  As the Supreme Court said in Pinkerton v. U.S. (1946):



Flouting the Rule of Law

Filed under: General — Patterico @ 12:01 am

Yesterday I asked people who support jury nullification what they would do if they perceived a conflict between the rule of law and the dictates of their own conscience. I asked: if the evidence showed beyond a reasonable doubt that the defendant was guilty of a breaking a valid law, but convicting the defendant appeared to be an unjust result, would you:

a) follow the law and convict;
b) follow your conscience and acquit; or
c) ask to get off the jury?

I believe the correct answer is either a or c. Jurors should follow the law, and if the situation is so extreme that following the law would keep them up at night, they should get off the jury (absent circumstances so unusual that the entire fabric of society has broken down).

But several of you picked choice b. You said you’d stay on the jury and acquit, despite your oath to follow the judge’s instructions. You said you would always follow your conscience over the law.

Here’s my question for you:

Do you think that’s how federal judges should behave?

Because some of them do — and if you believe that conscience always trumps the rule of law, you have no standing to complain about it.



Is Greg Miller Serious?

Filed under: General — Patterico @ 10:28 pm

I love this comment by Greg Miller on jury nullification:

I just don’t see a problem with jury nullification. It’s ridiculous to let evidence, argument, and jury instructions be the basis for rendering a decision, when my conscience knows better. I think I would know whether or not a person is guilty, or whether the law is equipped to render justice, irrespective of what the prosecution or defense presents or the judge says. A juror should compensate for the perceived competence of each side, and be free to fill in evidence that was probably excluded (for one side or the other) by arcane rules of evidence. (Figuring that out would give my wandering mind something to while the witnesses and attorneys drone on.)

I know that both sides cheat, so it’s better that I trust my judgment instead of the faulty system that is currently in place. And where the hell [d]o judges get off giving jury instructions? I think my conscience can figure out the proper outcome without the meddling of a know-it-all.

What better way to celebrate freedom and individuality, than for me to follow my gut feelings? That’s much better than following overly detailed laws, which are laughably offered up as the democratically expressed will of society. Every one knows that legislatures and legal system are composed of idiots, and corrupt idiots at that.

Whether it’s some outsiders agitatin’ about voter rights–and getting their just reward–or a repressed member of my race
“evenin’ up the score” by killing someone who probably deserved it, it’s better for me to render true justice than be bound by inflexible laws and jury instructions.

Those advocating jury nullification would want to have me on the jury in their trials. I would do everything possible to ensure that they received the verdict that my conscience dictates. What more could they want?

What I like best about it is this: I don’t know whether he is serious or not.

Is it a deadpan mocking of some of the silliest arguments by those who support jury nullification?

Or is he completely serious?

Having read dozens (perhaps hundreds) of comments on the issue over the past several days, I just don’t know for sure. The penultimate paragraph suggests sarcasm, so I’m guessing deadpan sarcasm.

If that’s what it is, it’s really, really deadpan. Because I just don’t know for sure whether he means it or not.

That worries me. But it also amuses me.


A Radical Patterico Proposal: Doing Away With the Rules of Evidence (Or, Proof that Patterico Really Does Trust Juries)

Filed under: General — Patterico @ 8:26 am

There are some folks who think that I argue against jury nullification because I don’t trust jurors. Or because I have some vested interest in maintaining the system exactly as it exists.

Heh. They have no idea.

Maybe those folks will change their tune when they hear one of my pet ideas: doing away with the rules of evidence.

I say: let each side present anything they want. If it’s irrelevant, the jury will be insulted and punish the side presenting the irrelevant evidence. If it’s hearsay, or lacking in proof, the jury will discount it accordingly.



Balko Corrects Error; Makes New One

Filed under: Law — Patterico @ 5:53 pm

Radley Balko is correcting his mistake in attributing a quote to the Supreme Court that actually came from a Court of Appeals decision. But in correcting the error, he makes another — implying that the Supreme Court’s failure to reverse the Court of Appeals decision somehow means that the Supreme Court approves of it (or at least didn’t strongly disagree with) the lower court’s holding:

In fact, the case was decided in the D.C. Court of Appeals (though the Supreme Court apparently didn’t object enough to review it).

Balko’s implication is based on a commonly held but entirely erroneous belief that the Supreme Court’s refusal to take a case signifies approval of the reasoning and/or the result. This is most assuredly not the case.

As this link explains, review in the Supreme Court is a matter of judicial discretion. The Supreme Court exists,

not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved. The Court grants and hears argument in only about 1% of the cases that are filed each Term. The vast majority of petitions are simply denied by the Court without comment or explanation. The denial of a petition for a writ of certiorari signifies only that the Court has chosen not to accept the case for review and does not express the Court’s view of the merits of the case.

The Supreme Court’s decision not to review the Court of Appeals case cited by Balko does not in any way constitute agreement with the case, and Balko is wrong to imply otherwise.

P.S. Xrlq tells me that the case Balko quoted held against jury nullification — so even if Balko’s bogus “denial of cert. equals approval” principle applied (which it doesn’t), that would argue against Balko’s view and not for it.


Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t.

Filed under: General — Patterico @ 6:01 am

Radley Balko, the “Agitator,” is agitated that I said:

When I hear the name Radley Balko, I check, and check again.

He figures I said it because I am a prosecutor and he is a libertarian, ergo I don’t like him. Then he makes a few dark insinuations about how I do my job. I do my job well and I resent Balko bringing my employment into the discussion, which he did simply because a) I disagree with him and b) I have caught him on inaccuracies in the past that he has refused to correct.

Sorry, Radley. I don’t willy-nilly accuse every libertarian of being inaccurate — just the ones who are. Balko has made at least one misstatement that he didn’t bother to correct even after I called him on it. In arguing for jury nullification, Balko claimed that a quote favorable to his position was from a Supreme Court decision, when I discovered that it was in fact from a mere Court of Appeals opinion. I blogged the error here, and wrote Balko an e-mail about it, and he never wrote me back or corrected the piece.

Xrlq has caught Balko on other distortions (see here and here).

P.S. As to the specific case in question, I simply felt that Xrlq and (to a lesser degree, Balko) had oversimplified (and understated) the facts underlying the decision. Read this Xrlq post and this comment of mine to see what I mean. That doesn’t mean I necessarily agree with the decision — just that I want to see it portrayed accurately.

UPDATE: Balko says he will correct the error. I’m pleased to see that.


Can the Killer of Abortion Doctor George Tiller Argue That the Killing Was Not “Murder”?

Filed under: Crime,General — Patterico @ 7:39 am

Abortion rights groups are up in arms because Scott Roeder, the killer of late-term abortion doctor George Tiller, may be allowed to argue that the killing was voluntary manslaughter:

Before the first juror is selected or witness called, a decision allowing a confessed killer to argue he believes the slaying of one of the nation’s few late-term abortion providers was a justified act aimed at saving unborn children has upended what most expected to be an open-and-shut case.

Some abortion opponents are pleasantly stunned and eager to watch Scott Roeder tell a jury his slaying of Wichita doctor George Tiller was voluntary manslaughter. Tiller’s colleagues and abortion rights advocates are outraged and fear the court’s actions give a more than tacit approval to further acts of violence.

This is an interesting issue, but off the top of my head, the judge’s ruling may be legally correct — but only because he doesn’t yet know what the evidence will be. It’s very hard for me to believe that a voluntary manslaughter instruction will ultimately be given, however.

Here’s the basic principle (and I’m oversimplifying): you can’t be convicted of murder if you have an honest belief that your actions were necessary to prevent someone else from committing an unlawful killing. Under Kansas law, it appears that the killing must have been “imminent.”

If your belief was reasonable, it’s a justified killing. Say, for example, you are a customer in a robbery, and the robber raises his gun to kill the clerk, so you kill the robber. That’s a justified killing. Not guilty.

If your belief was unreasonable, it’s voluntary manslaughter. It’s still a crime, but it’s not murder. (It’s hard to come up with a simple example of this that clearly illustrates this concept, because people will argue about whether the belief was reasonable or justified, depending on the fact pattern.)

Roeder’s trial is in the jury selection stage. No evidence has been presented. As I understand the news reports (which are really quite bad and all over the map), it looks like the judge has already ruled that the killing is not justified, because Tiller’s abortions were legal. (The Wall Street Journal article suggests otherwise, but I think it’s wrong based on other articles I have read, e.g. here. I think the WSJ reporter doesn’t understand the arguments.) Thus, Roeder’s killing was unreasonable as a matter of law. He can’t legally get an acquittal based on the argument that he needed to kill Tiller to save babies.

As for the manslaughter charge, the judge is in a different posture. He hasn’t heard any evidence, so he doesn’t know whether Roeder would be able to argue that he honestly believed his actions were necessary to prevent an imminent killing. The stories say that the judge is skeptical, and rightly so.

Interestingly, if the killing had happened in Tiller’s office, the imminence would be far less of an issue.

To me, the more interesting and problematic issue is this: what if Roeder knew that the killing(s) he hoped to prevent were legal — but he honestly disagreed? In that case, I believe, there is no mitigation and no voluntary manslaughter instruction. (For the legal types, this is a “mistake of fact” vs. a “mistake of law” issue.) [UPDATE: But see UPDATE below.] None of the articles I read confront that issue — but that, and not the imminence of the abortions, is the real issue, it seems to me.

Of course, there’s always nullification. The instructions don’t matter when the jury has decided not to follow the instructions to begin with. And so I pose this question to the radical libertarian Balko fans who support abortion: the jury could still nullify. How do you like nullification now?

UPDATE: I wrote this post in a hurry this morning and I’m not entirely happy with the way I expressed the analysis — especially the comment about the “mistake of fact” vs. “mistake of law” issue. Don’t hold me to that language. I think this is a very cutting edge issue with few clear precedents and I’ll have to think about it more.

A commenter points me to an analysis by Paul Cassell at Volokh that agrees with the prosecution on the question of imminence. I agree that the instruction may not ultimately be given, but I disagree that the answer is obvious. The key is the unreasonableness of the belief: you might unreasonably believe that the danger is imminent even if it isn’t.

For example, it’s not unheard of at all for a battered woman to kill her husband in his sleep and get a jury instruction on voluntary manslaughter. There’s no way such a woman will get a self-defense instruction, but she might get an unreasonable self-defense instruction.

I still think the more interesting question is whether the defendant must subjectively and honestly believe that the killing he is preventing is unlawful. And then, unlawful according to whom? What if he knows these abortions are considered lawful, but he truly believes them to be unlawful under U.S. law . . . but he thinks the courts have it wrong?

Somewhere in here is an interesting law review article . . .


Balko Backs Off, But Not Much: He Now Says He Wouldn’t Lie Under Oath, He Would Just “Misdirect” the Court Under Oath

Filed under: Crime,General — Patterico @ 1:54 pm

This morning I criticized Radley Balko for saying he would lie under oath to get onto a jury so he could nullify in numerous different cases. He now backs off that claim, but only slightly, in this post:

One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.

Balko’s stated intent to use Clintonesque “misdirection” instead of “lying” doesn’t make his plan to mislead the court any more admirable.

First, I think Balko overestimates his ability to dodge questions in jury selection. The most fundamental question asked of jurors is whether they can follow the law. They are asked that question under oath. Balko will be asked direct questions under oath like this: are you willing to follow the law? and will you follow the judge’s instructions even if you don’t agree with them? When he knows the answer to these questions is “no,” how is he going to answer these direct questions in a way that constitutes “misdirection” but not “lying”?

Even if he could somehow pull this off, is this truly admirable behavior? I think it’s clear that it isn’t. This morning I used the analogy of police lying under oath about probable cause to ensure the conviction of a truly guilty defendant. Even if the defendant is a truly bad man — say a killer who is certain to kill again if he hits the streets — we can’t tolerate such lies in our system of justice. Would it be better if the officer somehow managed to avoid “lying” but rather employed “misdirection” that gave the court the false impression that the search was legal when it wasn’t? Absolutely not. Witnesses are to tell the whole truth in their testimony, and let the chips fall where they may. Deliberate “misdirection” is not acceptable. The same goes for jurors answering questions in voir dire.

As I said this morning, Balko’s argument — justifying lying to the court under oath to further his agenda — could easily be used by a blogger to justify lying on his blog to advance the same important principles. And I don’t see how it’s any different if it’s “misdirection” rather than lying. I assume Balko would disavow any intent to deliberately misdirect readers on his blog in order to make his arguments. But why? Why is making honest arguments on a blog more important than telling the truth to the court while under oath??

And I am profoundly unimpressed by the argument, advanced by some commenters, to the effect: we’ll start being honest when the system is honest with us — but as long as there are some lying judges or lawyers out there, why then, we have no duty to be honest to the court. That’s pure, naked rationalization of dishonesty. There are a million liars out there in the world, and if you are going to use their lies to justify your own, you have no integrity at all, because you can always find someone out there who has lied.

Deiberate misdirection is little different from lying, and it is intolerable in the justice system. Enough people got sick of Slick Willie and his cute circumlocutions that the derogatory term “Clintonesque” needs no explanation. Balko essentially says he’d be Clintonesque with the court. When you’re under oath, that doesn’t cut it. Furthermore, there’s nothing admirable about being Clintonesque.

P.S. By the way, Balko seems to think he’d be kicked off any jury anyway, regardless of his misdirection. But why? Is he really so famous that every prosecutor in the country knows who he is? If he gets himself in front of a prosecutor who is unfamiliar with his writings, and he misdirects the court and counsel to get on a jury, why wouldn’t he be successful? So this is not necessarily a purely hypothetical situation, as he appears to assume.

UPDATE: Balko responds here. He says:

[Patterico] does again take a jab at my credibility, implying this time that someone who would mislead to get onto a jury in order to prevent an injustice would also lie on his blog to further the radical libertarian agenda.

No, I simply noted that the logic Balko employs could be used to justify lying on a blog. In a previous post, I said three times that I wasn’t accusing Balko of lying on his blog, but I forgot to say it three times again, so he now accuses me of it.

Whatever. I’m not the guy advocating dishonesty, Balko is. If he chooses to avoid the implications of his proposal in his latest post, that’s his problem, not mine.

His explicit advocacy of dishonesty isn’t winning him any fans, and I’m guessing his refusal to confront my real criticisms head-on aren’t helping his cause much either.


Why the Oath to Follow the Law is Not Coercive

Filed under: General — Patterico @ 7:51 am

Thanks for all the responses to my nullification question yesterday. I will address some of the major recurring arguments as time permits.

First, many of you argued that requiring jurors to swear an oath to follow the law is coercive. You believe that the court would hold a juror in contempt for failing to take the oath — a threat that would prevent jurors from following their conscience.

This argument shows an unfamiliarity with the jury selection process, which is designed to weed out jurors who can’t follow the law before they are selected to be on a jury.

Nobody in the courtroom wants to put jurors in a position where they will be voting in a manner contrary to their conscience. That’s why the court spends hours on jury selection: to make sure jurors understand the rules, and to give them a chance to tell the court if they can’t live by them.

Jurors are always asked whether they can follow the law. They are told to say so if they can’t.

The oath comes at the end of the process, when the jury has been chosen.

I’ve never seen a juror who refused to take the oath to follow the law. But if it happened, the judge almost certainly would not respond with a threat of contempt. He would ask the juror why he is not taking the oath. If the juror said: “Because I can’t promise to follow the law,” the judge would ensure that the juror was not saying this to get out of jury service.

If it appeared that the juror was sincere, the judge would likely say something along these lines:

Why in the world didn’t you tell us this during jury selection? Between the lawyers’ questions and mine, we must have asked the prospective jurors in fifty different ways whether you could follow the law. And you never said a word. Why not?

After this lecture, the juror would be excused for cause.

Nobody is coerced into taking an oath to follow the law. The question is: if you can’t follow the law, would you lie to get on the jury, take an oath to follow the law — and then disregard it?



Filed under: Court Decisions,Crime — Patterico @ 7:19 am

Andrew D. Cohen, legal analyst for CBS News, has an op-ed in this morning’s L.A. Times. The op-ed’s theme is encapsulated in this curious statement:

The court’s majority this term consistently and sometimes passionately rose to protect the interests of criminal defendants, who have been some of the most consistent, if unmourned, legal “victims” of the so-called Rehnquist Revolution.

I’m sorry? Was there a “Rehnquist Revolution” cutting back on the rights of criminal defendants before this term? Can someone explain to me what this guy is talking about?

Is he talking about the Dickerson case, which reaffirmed Miranda?

Is he talking about the Stogner decision, which shielded numerous unquestionably guilty pedophile priests from prosecution, by invalidating a California law modifying statutes of limitations for sex crimes?

Is he talking about the nullification of the death penalty for the mentally retarded?

Oh, wait — I know: he’s talking about the Crawford case, which severely limited the nature of hearsay exceptions that prosecutors can use.

No? That’s not it?

Maybe he meant the Blakely case, which invalidates any sentencing enhancement not found true by a jury?


Well, then, fill me in. I’m sure there’s a decision or two out there that hasn’t been sympathetic to the rights of these criminal defendant “victims.” (The upholding of California’s Three Strikes law comes to mind.) But in the main, what I have seen is a steady stream of decisions like Crawford that have prosecutors shaking their heads and cursing Antonin Scalia’s name. If there has been an anti-defendant “Rehnquist Revolution,” I must have missed it.

UPDATE: More in the extended entry.


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